10.

Law of Treaties

Grounds of Invalidity
o

The validity of a treaty, or of the consent to be bound by a treaty, may be impeached

only through the application of the Vienna Convention Article 42(1).

The Vienna Convention establishes both a substantive and procedural code

regulating the invalidity of treaties.
Replaces the less certain CIL.
Substantive grounds are provided for in Articles 46-53.

Article 45(a): A state party loses its right to invoke grounds of invalidity if it has
expressly agreed that the treaty is:
valid;
remains in force; or
continues in operation.

Article 45(b): A state party loses its right to invoke grounds of invalidity if it
acquiesces in the:
validity of the treaty,
maintenance in force of the treaty, or
continuance in operation of the treaty.
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Exception: a state party will not lose its right to invoke grounds of
invalidity if the grounds of invalidity are:
o coercion; or
o violation of a jus cogens.

1st Ground of Invalidity: Article 46

Violation of a state's internal law regarding its competence to conclude
treaties is generally not a ground of invalidity.
Unless the violation of the state's internal law is manifest and concerned a
rule of fundamental importance.
- Constitutional law (not less fundamental more easily amended law)
- Only the state expressing consent can invoke this ground
- What is manifest? See Article 46(2).
o A violation is manifest if it would be objectively evident to
any state conducting itself in good faith.

2nd Ground of Invalidity: Article 47

The state's representative goes beyond their authority. This is very rare.
"If the authority of a representative to express the consent of a state to be
bound by a particular treaty has been made subject to a specific restriction,
his omission to observe that restriction may not be invoked as invalidating
the consent expressed by him unless the restriction was notified to the other
negotiating states prior to his expressing such consent."
- Legal Status of Eastern Greenland Case, Norway v. Denmark, PCIJ Rep
(1933) Series A/B No. 53

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3rd Ground of Invalidity: Article 48

A state may invoke an error in a treaty as invalidating its consent to be
bound by the treaty if the error relates to a fact or situation which was
assumed by that state to exist at the time when the treaty was concluded
and formed an essential basis of its consent to be bound by the treaty.
The ground of "error" shall not apply if the state in question contributed by
its own conduct to the error or if the circumstances were such as to put that
state on notice of a possible error.
- Temple of Preah Vihear Case (Cambodia v Thailand) (Merits), ICJ Rep
(1962) 6

4th Ground of Invalidity: Article 49

If a State has been induced to conclude a treaty by the fraudulent conduct of
another negotiating state, the state may invoke the fraud as invalidating its
consent to be bound by the treaty.
- Fraudulent conduct includes any:
false statement;
misrepresentations; or
other deceitful actions,
by which a State is induced to give consent to the
treaty in question.

5th Ground of Invalidity: Article 50

If the expression of a state's consent to be bound by a treaty has been
procured through the corruption of its representative by another
negotiating state, that state may invoke such corruption as invalidating its
consent to be bound by the treaty.

6th Ground of Invalidity: Article 51

The expression of a state's consent to be bound by a treaty which has been
procured by the coercion of its representative through acts or threats
directed against him shall be without any legal effect.
- Coercion of a representative includes blackmail and threats against
the representative's family.

7th Ground of Invalidity: Article 52

A treaty is void if its conclusion has been procured by the threat or use of
force in violation of the principles of international law embodied in the
Charter of the United Nations.

8th Ground of Invalidity: Article 53

A treaty is void if, at the time of its conclusion, it conflicts with a jus cogens.
- See definition of jus cogens.

Consequences of Invalidity
o

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Article 44(2): As a general rule, invalidity may be invoked only with respect to the
whole of the treaty, and not specific parts.
Article 44(3): The exception is when the grounds of invalidity relate solely to
particular clause(s), it may be invoked with respect to those clauses.
Such clauses are severable if:
o the affected clauses are separable from the remainder of the
treaty;
o acceptance of those clauses was not an essential basis of the
consent to be bound by the treaty as a whole;
o continued performance of the remainder of the treaty would
not be unjust.
o
Article 44(5): No severance of a clause is ever permitted where the ground of
invalidity is:
coercion of a state's representative;
coercion of the State itself;
violation of a jus cogens.

Article 69(1): A treaty or a severable treaty provision which is found to be invalid is

void and has no legal force.
It is void ab initio and not merely from the time the invalidity is invoked or
established.

Article 69(2)(b): If a state performs actions in good faith under a treaty before that
treaty's invalidity is invoked, such actions are not rendered unlawful merely by
reason of the invalidity.
On the other hand, if the actions were unlawful but for the treaty or if the
actions were not performed in good faith belief in the treaty's validity, then
the state performing those acts remain liable for their consequences.

Article 69(2)(a): Where a treaty or one of its provisions has been established as
invalid, each party may require any other party to establish as far as possible in
their mutual relations the position that would have existed if the actions had not
been performed.

Article 69(2)(b): This obligation may be capable of only limited fulfillment and is
concurrent with the rule that acts performed in good faith are not rendered
unlawful merely by reason of the treaty is subsequently established to be invalid.

Termination

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Denunciation is used in relation to a bilateral treaty and will result in a treaty's

termination.

Withdrawal from a multilateral treaty will not terminate a treaty but will terminate
the withdrawing state's participation.

Grounds for termination of a treaty

consent of all the parties;
subsequent conclusion of an incompatible treaty;
occurrence of a material breach;
supervening impossibility of performance;
fundamental change of circumstances;
emergence of new rule of jus cogens in which the treaty is in conflict.

A treaty does not terminate simply because all obligations under it have been
complied with. Although there are no provisions that remained to be fulfilled, such
a treaty continues in force until terminated.

A treaty may be suspended.

Suspension means that the treaty remains in force but the parties are
relieved of the obligation of performance while the treaty remains
suspended.

1st Ground for Termination: Article 54

Parties may consent to termination of a treaty:
in conformity with the provisions of the treaty itself; or
with the consent of all parties.

2nd Ground for Termination: Article 59

All the parties to a treaty subsequently conclude another treaty which
covers the same subject matter as the earlier treaty.
In that case, the earlier treaty will be terminated if the later treaty
makes provision for such termination or if it is established that the
parties intended that the later treaty should govern that subject
matter. Article 59(1)(a).
The earlier treaty will also be terminated if the provisions of the
later treaty are so far incompatible with those of the earlier one that
the two treaties are not capable of being applied at the same time.
Article 59(1)(b).
Suspension of the earlier treaty, rather than its termination, may
result if is established that it was the intention of the parties for the
treaty to be suspended. Article 59(2).

3rd Ground for Termination: Article 60

Material breach of a bilateral treaty entitles the other party to invoke the
breach as a ground for terminating the treaty or suspending its operation.
Article 60(j).

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Material breach of a multilateral treaty is more complicated. See Article

60(2).

Material breach consists of:

Repudiation of treaty not sanctioned by the Vienna Convention; or
Violation of a provision essential to the accomplishment of the object
and purpose.

Material breach is not limited to breaches of an essential/fundamental term.

However, a breach of a fundamental term is a good example of a material
breach.

A material breach can occur when the breach is of a serious

character.
- Is it necessary for the breach of the essential/fundamental
term to be of a serious character?
- The better view is that the breach of an
essential/fundamental term must be a serious breach.

Occurrence of a material breach does not automatically terminate a

treaty.

Material breach must be invoked and the non-defaulting party or

parties have the option to terminate or not.
- Non-defaulting party will lose its option to terminate on the
grounds of material breach if, after becoming aware of the
facts either expressly agrees or acquiesces, in the treaty's
continued operation. Article 45.

Parties to a treaty may make provisions at variance with the Vienna

Convention with respect to material breaches in Article 60.

Material breach of a human rights treaty does not justify other parties in
terminating or suspending the treaty: Article 60(4).

4th Ground for Termination: Article 61

Supervening impossibility of performance means that the performance of
the treaty is rendered impossible.
Examples:
a river may dry up;
an island may submerge.

A party may invoke the impossibility of performing a treaty as a ground for

terminating it if the impossibility results from the permanent disappearance
or destruction of an object which is indispensable for the execution of the
treaty.

If the impossibility is temporary, it may be invoked only as a ground

for suspending the operation of the treaty.

Impossibility of performance may not be invoked by a party as a

ground for terminating a treaty if the impossibility is the result of a
breach by that party of an obligation under the treaty.

Supervening impossibility does not automatically terminate the

treaty

The supervening impossibility must be invoked as a ground

for termination by one of the parties.

5th Ground for Termination: Article 62

Fundamental change of circumstances which is referred to as the doctrine of

rebus sic stantibus.

Article 62(1): A fundamental change of circumstances which has occurred

with regard to those existing at the time of the conclusion of a treaty, and
which was not foreseen by the parties, may not be invoked unless:
(a) the existence of those circumstances constituted an essential
basis of the consent of the parties to be bound by treaty; and
(b) the effect of the change is radically to transform the extent of
obligations still to be performed under the treaty.

Article 62(2): A fundamental change of circumstance may not be invoked as

a ground for terminating a treaty if the fundamental change is the result of a
breach by the party invoking this ground for termination.

Article 62(3): If fundamental change of circumstances may be invoked as a

ground for termination of a treaty, it may also be invoked as a ground for
suspending the treaty.
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Fisheries Jurisdiction Case, United Kingdom v Iceland, ICJ Rep (1973)

3. This case circumscribed the scope of this doctrine.
Case Concerning Gabcikovo-Nagymaros Project, Hungary v Slovakia
ICJ Rep (1997) 7.

A fundamental change in circumstances must have been unforeseen; the

existence of the circumstances at the time of the treaty's conclusion must

have constituted an essential basis of the consent of the parties to be

bound by the treaty. (similar to domestic law concept of reliance).

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The negative and conditional wording of Article 62 is a clear indication that

the plea of fundamental change of circumstances be applied only in
exceptional cases.

Diplomatic Relations
The severance of diplomatic relations between parties to a treaty
does not affect their legal relationship under the treaty, except in so
far as diplomatic relations is indispensable for the application of the
treaty. Article 63.
Conversely, it is not necessary for 2 states to have established
diplomatic relations in order to conclude a treaty between them.

6th Ground for Termination

A treaty is void if, at the time of its conclusion, it conflicts with a jus cogens.
Article 53.
Article 64 addresses the situation where a treaty was validly concluded, but
subsequently comes into conflict with a newly-emerged jus cogens.
If a jus cogens emerges, any existing treaty which is in conflict with it
becomes void and terminates.

Consequences of Termination: Article 70(1)

The treaty or the parties themselves may reach agreement as to the
consequences of termination of a treaty.
Otherwise, the termination of a treaty:
(a) releases all parties from further obligations to perform treaty;
(b) leaves intact all rights, obligations and legal situations which
were created under the treaty prior to its termination.

Consequences of Suspension: Article 72

Suspension releases the parties between whom the treaty is suspended from
their mutual obligations of performance while the treaty remains
suspended.
During suspension all parties must refrain from acts tending to obstruct the
treaty.